Respecting this inference of the Court, the British Foreign Office said on July 24, 1868: “Having regard to the very doubtful character of all trade ostensibly carried on at Nassau during the late war in the United States, and to many other circumstances of suspicion before the court, Her Majesty's Government are not disposed to consider the argument of the court on this point as otherwise than tenable."

Moore's Digest, vol. vii, p. 724.

The "Peterhoff," 5 Wall., 28.-In this case the court said that articles which may be and are used for purposes of war and peace, according to circumstances, are contraband only when actually destined to the military or naval use of a belligerent.

The "Volant," 5 Wall., 179.-This was the case of a neutral vessel sailing with neutral goods consigned to neutrals at Matamoras, Mexico, during the American Civil War.

The United States Supreme Court directed restitution of the vessel and cargo, saying that the latter consisted "in part of bales of confederate uniform cloth ** * * but there is no proof of unlawful destination."

See also The Science, 5 Wall., 178.

The Cheltenham," Russian and Japanese Prize Cases, col. 1, p. 17. In this case the Vladivostock Prize Court held that railway sleepers (ties) and beer were contraband when destined to a port held by the enemy.

See also The Arabia, id., p. 42, in which railway material consigned to Japan was condemned.

The "Arabia," Russian and Japanese Prize Cases, vol. 1, p. 42.— Held by the Russian Supreme Court that flour was conditional cantraband and liable to condemnation only if consigned to the enemy's government contractors, navy, army, fortresses, or naval bases.

The "Calchas," Russian and Japanese Prize Cases, vol. 1, p. 118.In this case the Russian Supreme Court held timber, going to a Japanese port, and which it appeared might be used for shipbuilding, or railway bridges, to be condemnable, since the owners had not proved its innocent destination.

The court further held that flour going to a Japanese port was not condemnable, since the owners had proved its innocent destination. Rice held to be contraband of war when consigned to government contractor: otherwise when consigned to private parties.

The "St. Kilda" Russian and Japanese Prize Cases, vol. 1, p. 188.-In its decision to the above effect, the Russian Supreme court said: "The expression naval ports or fortresses' implies * * * places where military elements are concentrated exclusively or where they predominate" and .

"It should also be borne in mind that the denial of any right to carry food supplies to Kobe and Yokohama would tend to the suspension during war times of their extensive peaceful and commercial operations, and of the rice trade in particular."

See also The Ikhona, Russian and Japanese Prize Cases, vol. 1, p. 226, wherein wheat and rice were held not to be contraband, when destined to private persons.

The "Prinsesse Marie," Russian and Japanese Prize Cases, vol. 1, p. 276.-Iron and steel not suitable for construction or equipment of telegraphs, telephones, and railways were held not to be contraband when intended for peaceful purposes.

The "Aggi," Russian and Japanese Prize Cases, vol. 2, p. 131.— Coal was held not to be contraband when not destined for the enemy's army or navy.

Cargo Ex "Hsiping," Russian and Japanese Prize Cases, vol. 2, p. 135, and Cargo Ex "Pehping," id., p. 164.-Foodstuffs and beverages were condemned, having been captured on a neutral vessel and consigned to a port occupied as a Russian base depot. The court argued that since the articles in question were principally of a nature adopted for the requirements of Europeans and Americans, of whom, as non-combatants, there were very few in this port at the time, the goods must be held to be intended for the military use of the enemy immediately upon their arrival at the port.

Cargo ExHsiping," Russian and Japanese Prize Cases, vol. 2, p. 140.-Silver coins were condemned when captured on board a neutral vessel and consigned to a port occupied as a Russian base depot. The finding of the court that these coins were intended for the use of the enemy appears to have been based very largely on the claimed fact that in the port in question (a Chinese one) Russian paper money had greatly depreciated, owing to Russian defeats in war, and had indeed almost ceased to circulate and therefore silver money had become indispenable for the Russian army.

The "Aphrodite," Russian and Japanese Prize Cases, vol. 2, p. 240.-Coal was held to be contraband of war, when of best quality, which is rarely used in the Far East, except for naval purposes, and destined for Vladivostock, the only Russian naval base in the East.

See also The Wilhelmina, id., p. 248, and other cases reported in that volume.

The "Scotsman," Russian and Japanese Prize Cases, vol. 2, p. 256.-Rice was held to be contraband when captured on a neutral vessel bound for an enemy naval base; there being no charter-party on board the vessel, which pursued an indirect course to the base in question, and the ship being insured at a heavy premium. Moreover, the charter-party, when produced, showed that the owners had a right to the use of an ice breaker free of charge, and all ice breakers in the port of destination belonged to the Russian Government.

Cargo erBawtry," Russian and Japanese Prize Cases, vol. 2. p. 270.-The following articles were condemned as materials for railray construction when captured on board a neutral ship and destined for an enemy's port, used as a naval base and supply-depot: rails, fish plates, fittings, wheels and axles, axle boxes, containers, cars, point rails.

Telephones were also condemned as were the following articles as harness: spurs, stirrups, bits and chains.

The M. S. Dollar," Russian and Japanese Prize Cases, vol. 2, p. 284, and The" Wyefield," id., p. 291.--Hay, barley and oats were condemned as contraband, when captured on a neutral vessel, and destined for an enemy's port, used as a naval base and supply depot.

The "Paros," Russian and Japanese Prize Cases, vol. 2, p. 301.— Telephone wire, rock salt, milk, butter, cheese and wheat were condemned as conditional contraband when captured on board a neutral vessel and destined for an enemy's port, used as a naval base and supply-depot.

The "Tacoma," Russian and Japanese Prize Cases, vol. 2, p. 314-Salt beef was condemned as contraband when bound for an enemy's port, used as a naval station and supply depot, especially as it appeared that the beef has been purchased by an agent of contractors for the Russian army.

Cargo ex Lydia," Russian and Japanese Prize Cases, vol. 2, p. 367-Salt and table salt were condemned as provisions when captured on a neutral ship and destined for a port used as the enemy's coastal fortress and supply base.

The "Antiope," Russian and Japanese Prize Cases, vol. 2, p. 389.Semi-refined American rock salt was condemned as contraband. when captured on a neutral vessel and destined for a Russian port. which was in close touch with a district of military importance. It was found by the Prize Court that the salt in question was intended for use in salting fish; that the ordinary demand for such fish was greatly diminished by the war but that the military demand had increased, and that "the carriage to that district at this period of an enormous quantity of salt must be held to be for the purpose of using it in the preparation of salted fish for consumption by the Russian forces."

CIRCUMSTANCES UNDER WHICH CONDITIONAL CONTRABAND NOT LIABLE TO CAPTUREPROOF AS TO DESTINATION-EXCEPTION IN CASE OF COUNTRY HAVING NO SEABOARD.

Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port.

The ship's papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation. Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture in cases where the enemy country has no seaboard Declaration of London, Articles 35 and 36.

As has been said above, the doctrine of continuous voyage is excluded for conditional contraband, which is only liable to capture when it is to be discharged in an enemy port. As soon as the goods are documented for discharge in a neutral port they can no longer be contraband, and no examination will be made as to whether they are to be forwarded to the enemy by sea or land from that neutral port. It is here that the case of absolute contraband is essentially different.

The ship's papers furnish complete proof as to the voyage on which the vessel is engaged and as to the place where the cargo is to be discharged; but this would not be so if the vessel were encountered clearly out of the course which she should follow according to her papers, and unable to give adequate reasons to justify such deviation.

This rule as to the proof furnished by the ship's papers is intended to prevent claims frivolously raised by a cruiser and giving rise to unjustifiable captures. It must not be too literally interpreted, for that would make all frauds easy. Thus it does not hold good when the vessel is encountered at sea clearly out of the course which she ought to have followed, and unable to justify such deviation. The ship's papers are then in contradiction with the true facts and lose all value as evidence; the cruiser will be free to decide according to the merits of the case. In the same way, a search of the vessel may reveal facts which irrefutably prove that her destination or the place where the goods are to be discharged is incorrectly entered in the ship's papers. The commander of the cruiser is then free to judge of the circumstances and capture the vessel or not according

to his judgment. To resume, the ship's papers are proof, unless facts show their evidence to be false. This qualification of the value of the ship's papers as proof seems self-evident and unworthy of special mention. The aim has been not to appear to weaken the force of the general rule, which forms a safeguard for neutral trade. It does not follow that because a single entry in the ship's papers is shown to be false their evidence loses its value as a whole. The entries which can not be proved false retain their value.

The case contemplated is certainly rare, but has nevertheless arisen in recent wars. In the case of absolute contraband, there is no difficulty, since destination for the enemy may always be proved, whatever the route by which the goods are sent (art. 30). For conditional contraband the case is different, and an exception must be made to the general rule laid down in article 35, paragraph 1, so as to allow the captor to prove that the suspected goods really have the special destination referred to in article 33 without the possibility of being confronted by the objection that they were to be discharged in a neutral port.

Report of committee which drafted Declaration of London.

Contra.

In order to constitute the unlawfulness of the transportation of contraband, it is not necessary that the immediate destination of the ship and cargo should be to an enemy's country or port. If the goods are contraband and destined for the direct use of the enemy's army or navy, the transportation is illegal, and subject to the ordinary penalty.

Halleck, p. 576.

For a statement of the settlement by Articles 30, 35, and 36 of the Declaration of London of the long-standing controversy on the question of "Continuous voyage," see the extract from Lawrence (pp. 716-719) under article 30, supra.]

*

Article 35 [of the Declaration of London] categorically rejects the doctrine of continuous voyages with regard to conditional contraband ** *

However, in cases where the enemy country has no seaboard, article 36-in contradistinction to the provisions of article 35-expressly recognizes the doctrine of continuous voyages for conditional contraband also

*

*

Oppenheim, vol. 2, p. 506.

**

The general rule shall be that the destination of a ship is the destination of her cargo.

Japanese Regulations 1904, Article 15,

Contra in part.

In the case of a ship, the destination of which is not the enemy territory, should an intermediate port at which she calls during her voyage be within the enemy territory, or should there be a presumption that she is sailing to meet a sirip of war or other ship of the enemy, her destination shall be held to be the enemy territory.

Japanese Regulations 1904, Article 16.